Tuesday, April 18, 2006

Guidelines Appeals: why within guidelines sentences are presumptively unreasonable

The courts that apply a presumption of reasonableness in Guidelines appeals violate both the Booker remedial opinion and the Fifth Amendment’s reasonable doubt requirement, as blogged here. But there is also an argument, based on a fundamental error in the calibration of the Sentencing Table, that within-guideline sentences should be viewed as presumptively unreasonable. Given the rule of parsimony in 18 U.S.C. § 3553(a), every bottom-of-the-guideline sentence is 2.2% higher than the Sentencing Commission intended.

The story starts in 1987, when the Sentencing Commission’s staff was assigned the task of creating a baseline for the Sentencing Table, upon which all federal sentences were to be graphed. To create the Sentencing Table, Sentencing Commission staff collected a large sample of sentences for a broad array of crimes and determined the actual time served as a baseline. United States Sentencing Commission, Supplemental Report On The Initial Sentencing Guidelines And Policy Statements (June 18, 1987) at 23. Then, the Commission "adjusted for good time" by figuring out the longer sentence for which the actual time served would be 85%:

"Prison time was increased by dividing by 0.85 good time when the term exceeded twelve months. This adjustment corrected for the good time (resulting in early release) that would be earned under the Guidelines. This adjustment made sentences in the Levels Table comparable with those in the Guidelines (which refer to sentences prior to the awarding of good time)."

Id.; see also U.S.S.G. Ch.1, Pt. A, § 3, para. 3 (2005) at 9 ("Honesty is easy to achieve: The abolition of parole makes the sentence imposed by the court the sentence the offender will serve, less approximately fifteen percent for good behavior.").

Thus, every federal prisoner has had their term of imprisonment imposed based on a Sentencing Table that assumes good time credit based on 15% of the sentence imposed. But the BOP takes a different view. As blogged here and here, the BOP does not base good time on the term of imprisonment, but substituted a "time served" formula that reduces maximum good time credit by seven days for every year of the sentence imposed. The BOP formula requires that ideal prisoners serve at least 87.2% of the sentence imposed. For example, on a year-and-a-day sentence, maximum good time credit is 47 days, not 54 days; on a 60-month sentence, the maximum good time credit is 235 days, instead of 270 days; on a 120-month sentence, the maximum good time credit 470 days, not 540 days. Until the BOP changes its method of calculation to mirror the method upon which the Sentencing Table is calibrated, every bottom-of-the-guideline sentence is higher than the United States Sentencing Commission intended based on its statistical methodology.

Now the seven days may not sound like much -- unless you are serving the time or waiting for a loved one. But the Supreme Court has found that a single day over-incarceration is significant for purposes of the right to counsel (Argersinger) and effective assistance of counsel (Glover). And the over-incarceration multiplies with every added year of the sentence. For all federal prisoners eligible for good time, the total time involved is over 34,000 years (188,410 prisoners x 7 days a year x 9.5 average sentence over a year and less than life ÷ 365 days in a year = 34,326 years). At $22,265.00 per year for non-capital incarceration expenditures, this amounts to over $764 million in taxpayer money that Congress did not intend or authorize to expend on incarceration for current prisoners, and over $66 million more for each new year.

But aside from waste, the institutionalized skewing of sentences to add actual time makes Guidelines sentences unreasonable. The statute calls for a sentence sufficient but not greater than necessary to serve the purposes of sentencing. 18 U.S.C. § 3553(a). So a sentence at the bottom of the guideline range is already 2.2% greater than the Sentencing Commission itself intended as presumptively reasonable under the unconstitutional pre-Booker mandatory guidelines system.

The simple answer to the argument about presumptive unreasonableness is that the BOP is misconstruing the statute. Three district courts have so found, as blogged here, but the circuits have thus far found the statute to be ambiguous and, instead of following the rule of lenity in construing an ambiguous penal statute, followed a rule of severity by following the BOP (not the Sentencing Commission) construction of the statute.

The construction of the good time credit statute is presently before the Supreme Court in three petitions for certiorari: O’Donald for the Third Circuit is linked here; Moreland for the Fifth Circuit is linked here; and Mujahid for the Ninth Circuit is linked here. Two petitions are supported by amicus briefs from the National Association of Criminal Defense Lawyers, Families Against Mandatory Minimums, the National Association of Federal Defenders, and every Federal Public and Community Defender (linked here and here). The Supreme Court has requested that the Solicitor General respond to the petitions.

If the Supreme Court grants certiorari, the arguments are very strong for bringing the BOP’s interpretation of the statute into conformance with the Sentencing Commission’s construction (and the statute’s plain meaning). Throughout the Criminal Code and the Sentencing Guidelines, "term of imprisonment" unambiguously means the sentence imposed. Even if there were statutory ambiguity, the rule of lenity would require the more generous calculation of good time, rather than the application of the Executive Branch’s harsher interpretation.

But in the meantime, the reality is that our clients are receiving sentences, and serving actual time, longer than the data-driven matrix established by the Sentencing Commission. Sentences within the guideline range, especially at the bottom of the range, are categorically unreasonable. They are actually greater than the norm the Sentencing Commission thought it was setting. Rather than the presumption of reasonableness some courts have accorded the Guidelines, sentences calculated in reliance on defective data should be presumptively viewed as unreasonably harsh.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon


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